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Babyrev v. Lanotte

United States District Court, S.D. New York

January 11, 2018

VADIM BABYREV, Plaintiff,
v.
DR. A. LANOTTE, Psychiatrist at Kirby Forensic Psychiatric Center; SHTA SANZ; SENIOR SHTA OYAKHILOME; DR. MORTIERE, Psychologist at Kirby Forensic Psychiatric Center; SOCIAL WORKER JI LING, at Kirby Forensic Psychiatric Center; and ANN MARIE T. SULLIVAN, Commissioner of Mental Health of the State of New York; each individually and in their official capacities, Defendants.

          OPINION AND ORDER

          Edgardo Rambs, U.S.D.J.

         Pro se plaintiff Vadim Babyrev, a patient at Kirby Forensic Psychiatric Center, brings this action pursuant to 42 U.S.C. § 1983 against defendants Dr. A. Lanotte, Dr. Mortiere, Social Worker Ji Ling, Secure Hospital Treatment Assistant (“SHTA”) Sanz, Senior SHTA Oyakhilome, and Commissioner of Mental Health for the State of New York Ann Marie Sullivan, in their official and individual capacities. Doc. 1 at 1. Plaintiff alleges that Defendants violated his constitutional rights under the First and Fourteenth Amendments when his access to pens, telephones, and plastic eating utensils was restricted for several months in 2015. See Id. at 3-4. Pending before the Court is Commissioner Sullivan's motion to dismiss Plaintiff's claims against her in their entirety pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Doc. 54. For the reasons set forth below, Commissioner Sullivan's motion to dismiss Plaintiff's claims against her is GRANTED in part and DENIED in part.

         I. Factual Background

         The following facts are drawn from allegations contained in the Second Amended Complaint (“SAC”) (Doc. 25) and Plaintiff's Opposition to Defendant's Motion to Dismiss (“Pl.'s Opp.”), which the Court accepts as true for purposes of the instant motion. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012); Vail v. City of New York, 68 F.Supp.3d 412, 427 (S.D.N.Y. 2014) (“Where new allegations in a pro se plaintiff's opposition memoranda are consistent with the allegations contained in the Complaint, they may be read as supplements to the pleadings.”) (citation and internal quotation marks omitted).

         Plaintiff is a patient at Kirby Forensic Psychiatric Center (“KFPC”), a facility administered by the New York Office of Mental Hygiene (“OMH”) that provides secure treatment and evaluation for forensic patients. See SAC at 2;[1] Memorandum in Support of Defendant's Motion to Dismiss (“Def.'s Mem.”) at 2. All of the defendants in this action, except for Commissioner Sullivan, work at KFPC. See id. at 1. Commissioner Sullivan is the Commissioner of Mental Health for the State of New York. Id. Plaintiff alleges that in 2015, Dr. Lanotte issued various orders preventing him access to writing and eating utensils and limiting his use of telephones. See Id. at 3-4. Specifically, Plaintiff claims that Dr. Lanotte issued an order denying Plaintiff access to pens from approximately January 2015 to June 2015, as punishment for Plaintiff's failure to return a pen intended exclusively for temporary use. Id. at 3. According to Plaintiff, the pen restriction violated his First and Fourteenth Amendment rights of freedom of speech, access to courts, and due process. Id. Plaintiff claims that from January to June 2015, Dr. Lanotte issued a separate order prohibiting Plaintiff from using plastic eating utensils, after Plaintiff threw plastic utensils in the garbage following a meal and refused to retrieve them when asked. Id. Finally, Plaintiff alleges that in March 2015, Dr. Lanotte issued an order limiting his phone calls to one or two “legal” calls per day, after Plaintiff ordered pens and paper over the telephone to be delivered to KFPC. Id. The telephone restriction order lasted for five to six months. Id.

         Plaintiff alleges that shortly after the order restricting his use of pens went into effect, he was strip-searched by Senior SHTA Oyakhilome and SHTA Sanz because they suspected that he had a pen. Id. According to Plaintiff, this search violated his Fourth and Fourteenth Amendment rights because “the search was unreasonable since a pen is not on the list of contraband items” in KFPC's Patient Orientation Handbook. Id.

         II. Procedural History

         Plaintiff initiated this action against Dr. Lanotte, SHTA Sanz, and Senior SHTA Oyakhilome on July 7, 2016. Doc. 1. With leave from the Court, Plaintiff filed an amended complaint, adding Commissioner Sullivan as a defendant, on November 28, 2016. Doc. 9. Plaintiff subsequently filed his SAC on March 20, 2017, naming Dr. Mortiere and Jing Li as additional defendants. Doc. 25. Dr. Lanotte, SHTA Sanz, and Senior SHTA Oyakhilome filed Answers to the SAC on April 6, 2017. Doc. 30, Doc. 31. Dr. Mortiere and Jing Li filed a joint Answer to the SAC on June 19, 2017. Doc. 45. On August 4, 2017, Commissioner Sullivan moved to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim. She asserts that the Eleventh Amendment bars Plaintiff's claims against her in her official capacity and that the Court should dismiss Plaintiff's § 1983 claims against her in her individual capacity because Plaintiff has failed to sufficiently allege her personal involvement in the conduct at issue. Def.'s Mem. at 1- 2.

         III. Legal Standard

         A. Rule 12(b)(1)

         Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate the case. Fed.R.Civ.P. 12(b)(1). The party asserting subject matter jurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. See Morrison v. National Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008). On a Rule 12(b)(1) motion challenging the district court's subject matter jurisdiction, evidence outside of the pleadings may be considered by the court to resolve the disputed jurisdictional fact issues. See Zappia Middle East Construction Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also Morrison, 547 F.3d at 170. When evaluating a motion to dismiss for lack of subject matter jurisdiction, the court accepts all material factual allegations in the complaint as true but does not necessarily draw inferences from the complaint favorable to the plaintiff. J.S. ex rel. N.S. v. Attica Central Schools, 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Financial Services Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)).

         B. Rule 12(b)(6)

         Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Koch, 699 F.3d at 145. However, the Court is not required to credit “mere conclusory statements” or “threadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Id. at 681 (citing Twombly, 550 U.S. at 551). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570.

         The same standard applies to motions to dismiss pro se complaints. See Mancuso v. Hynes, 379 F. App'x 60, 61 (2d Cir. 2010). However, the Court is also obligated to construe a pro se complaint liberally and to interpret a pro se plaintiff's claims as raising the strongest arguments that they suggest. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011); Triestman, 470 F.3d at 474. The obligation to be lenient while reading a pro se plaintiff's pleadings “applies with particular force when the plaintiff's civil rights are at issue.” Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). “However, even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level.” Id. (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted). A complaint that “tenders naked assertions devoid of further factual enhancement” will not suffice. Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks and brackets omitted); see also Triestman, 470 F.3d at 477 (“[P]ro se status ‘does not exempt a party from compliance with relevant rules of procedural and substantive law.'”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)) (internal quotation marks omitted).

         IV. Discussion

         Plaintiff contends that Commissioner Sullivan is liable for the pen, telephone, and eating utensil restrictions and the strip search-even though she did not directly impose the restrictions or direct or perform the search-because she created and implemented policies that allowed KFPC personnel to violate his constitutional rights, failed to train and supervise KFPC personnel, and failed to issue rules and regulations that were necessary to protect the constitutional rights of patients. See SAC at 7; Pl.'s Opp. at 6-7. Plaintiff seeks $100, 000.00 in punitive damages and $10, 000.00 in compensatory damages from Commissioner Sullivan. He also requests that the Court grant injunctive relief directing Commissioner Sullivan to (1) revise OMH's existing policies regarding the use of pen and paper and its restrictions in forensic psychiatric centers so the policies no longer violate Plaintiff's constitutional rights, (2) revise OMH's policies regarding the use of a phone and its restrictions, the use of plastic eating utensils and its restrictions, and the policies regarding strip searches of patients, so that ...


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